COLUMBUS, Ohio – The only inmate in modern history to survive an execution attempt must stay on death row, the Ohio Supreme Court ruled Thursday in a decision that leaves the man's fate up to the federal courts.
In a separate ruling, the court also determined that Ohio law doesn't allow a constitutional challenge of lethal injection.
Romell Broom's execution last year was stopped by Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein. Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed.
He was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.
The court's decision on the constitutionality of lethal injection answered a question about state law that had been posed by a federal judge. The federal courts have already settled the constitutionality of lethal injection in Ohio in their own rulings on the state's new execution method, which involved one dose of a fatal drug and a backup procedure if needed.
Lawyers for death row inmates say the state still has problems accessing inmates' veins, which can cause severe pain. They also say the state doesn't adequately train its executioners.
In Broom's case, his attorneys argued that no attempt to execute him could be done without violating his constitutional rights prohibiting double jeopardy.
"His death sentence may no longer be carried out by any means or methods without violating the constitutional rights identified herein and he must be removed from death row and placed in the Ohio prison system's general population," his attorneys said in a September court filing.
The argument, rejected by the state Supreme Court on Thursday without comment, is similar to Broom's case pending in federal courts.
In August, U.S. District Court Judge Gregory Frost ruled that Broom can continue to argue that a second execution try would be an unconstitutionally cruel and unusual punishment. Frost also said Broom could continue to argue he should have access to attorneys during any future execution attempt that might go awry.
In the injection ruling, justices in support of the decision said there was no reason to create a new avenue for appealing the procedure given the number of already existing state and federal appeals.
There "are more than adequate protections for those given the ultimate sentence," said Justice Evelyn Lundberg Stratton.
But outgoing Chief Justice Eric Brown, who lost election last month, said it was crucial to establish such a method of appeal.
"It is unthinkable that there could be no judicial forum in Ohio within which to explore the legal ambit of humane execution," Brown said.